Court No. - 1
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 76 of 2018 Applicant :- Deshraj Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Ravindra Kumar Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Ravindra Kumar, learned counsel for the appellant/applicant and Sri J.P. Tripathi, learned A.G.A. for the State and perused the record.
The present application has been moved by the appellant/applicant with a prayer to allow the application and grant him leave to file appeal against the judgment and order dated 15.12.2017 passed by Dinesh Pal Yadav Additional Sessions Judge/F.T.C. No. 1, Kaushambi in S.S.T. No. 336 of 2008 (State vs. Mithilesh Kumar and others) of P.S. Karari, District Kaushambi, arising out of case crime no. 192 of 2008, under Sections 498-A, 304-B IPC and 3/4 D.P. Act, whereby the trial court has acquitted the opposite parties/respondents nos. 2 to 5 without considering the evidence on record.
In the said appeal, it is contended that the trail court has passed the judgment against the wait of evidence as on the basis of evidence adduced from the side of prosecution, all the three ingredients of dowry death were well established. The story set up by defence of suicide by the deceased is not sustainable because the door was open and nothing was found on the the bed by taking help of which deceased could have committed suicide, hence it was a case of murder and the learned trial court had not framed any additional charges under Section 302 IPC, as directed by the Apex Court. The Trial court has committed manifest error in passing judgment of acquittal wholely misreading the evidence on record and passing the same on conjecture and surmises and the same needs to be set aside.
In brief the prosecution case as per the written report (Ext. Ka- 1) is that the applicant/appellant had married his daughter- Manju (deceased) on 6.7.2007 with Mithilesh Kumar (respondent no. 2) after having spent about Rs. 4,00,000/- and when his daughter went to her matrimonial home, the accused- respondents were not satisfied with the dowry which was given at the time of marriage and she used to be tortured for bringing less dowry regarding which a complaint used to be made by his daughter often to him and his elder brother Hori Lal. Despite convincing them, the accused-respondents were continuously demanding money for construction of their house. On 5.7.2008, some person from the village had informed the informant on phone that his daughter had been murdered by Smt. Kalawati, Mithilesh Kumar (husband), Kamlesh Kumar (dewar), Kailash Kumar (devar) and Santosh Kumar (dewar). After having received information, the appellant/informant/applicant went to her daughter's matrimonial home and found the dead body of his daughter lying on the bed and the whole of the family members had run away.
On the said written report (Ext. Ka-1), a case was registered at P.S. Karari within the District Kaushambi on 5.7.2008 at 13:00 hours against Smt. Kalawati (respondent no. 4), Mithilesh Kumar (respondent no. 2), Kamlesh Kumar (respondent no. 3), Kailash Kumar and Santosh Kumar (respondent no. 5) under Sections 498-A, 304-B and 3/4 D.P. Act as Case Crime no. 192 of 2008 and its entry was made in G.D. at report no. 23, time 13:00 hours, on the same day which is Ext. Ka-4. Chick F.I.R. of the said case is Ext. Ka-3. Panchayatnama of the deceased was performed on 5.7.2008 at 14:45 hours which was prepared by Mewalal Sharma (PW-8), which is Ext. Ka-2.
On 6.7.2008 at 4:15 pm, Dr. T.B. Maurya (PW-6) had conducted post-mortem of the deceased who gave cause of death to be asphyxia as a result of ante-mortem hanging but did not find the hyoid bone fractured and proved the post-mortem report, which is Ext. Ka-5.After registration of the case, investigation was handed over to I.O. Md. Tarik, who was examined as PW-7 and has proved site plan Ext. Ka-6 and submitted charge sheet (Ext. Ka-7) against the accused- respondents.
The trial court had framed charges against the accused- Mithilesh Kumar, Kamlesh Kumar, Smt. Kalawati, and Santosh Kumar on 11.2.2009, under Sections 498-A, 304B IPC and 3/4 D.P. Act to which they pleaded not guilty and claimed to be tried.
Thereafter prosecution, to prove its case, Deshraj (informant) as PW-1, Horilal as PW-2, Teerath Singh as PW-3, Smt. Geeta Devi as PW-4, Constable Mirza Masarrat Ali as PW-5, Dr. T.C. Maurya as P.W-6, Mohd. Tarik as PW-7 and Meva Lal Sharma (Naib Tehsildar ) as PW-8, were examined. Thereafter, the evidence of prosecution was closed and the statement of accused-respondents were recorded under Section 313 Cr.P.C., in which they stated that entire evidence was false. They have been falsely implicated and the accused-respondent Mithilesh Kumar, who is husband of the deceased (Manju) has stated that his wife (deceased) wanted to accompany her to the place of posting but he had not got a house allotted because of which he could not accompany her there and had promised her that as soon a he would get house allotted, he would take her there but due to this annoyance she committed suicide. All other accused- respondents namely Santosh Kumar, Smt. Kamlesh Kumar, who are younger brothers of Mithilesh, have also repeated the same defence that their Bhabhi wanted to accompany her husband but because of house not being allotted to him he could not take her there as a result of which she committed suicide. Similarly, Smt. Kalawati has also stated the same version although, no evidence has been given in defence in writing.
Learned trial court after having considered the entire evidence on record has acquitted all the accused-respondents.
Learned A.G.A. has mainly argued that the door of the room where the deceased is alleged to have committed suicide was open, therefore, it could not not have been a genuine defence of the accused-respondents that deceased had committed suicide because she would never have made an attempt to commit suicide while door was open because such kind of acts are normally done after closing the door. Secondly, he argued that no such thing was found there which could have been used in committing the suicide in fact it is a case of murder, which has been committed by the accused-respondents and the learned trial court has committed error in not framing charges under Section 302 IPC as per direction of Supreme Court that in dowry death cases, the charge under Section 302 IPC should also be framed. Moreover, he also vehemently argued that the evidence which has been led by the prosecution has not been fairly appreciated by the learned trial court and it is a biased decision in favour of the accused which needs to be set aside.
In paragraph no. 49 of the judgment, the learned trial court has mentioned that PW-1, who is father of the deceased, has stated that the accused used to harass the deceased because of not bringing adequate dowry regarding which the deceased used to tell him and his elder brother and further she used to tell that they were demanding Rs. 50,000/- for construction of a house but in cross-examination of the said witness, he had stated that he had married his daughter after having seen good status of the people of her matrimonial home because husband of the deceased was employed in army and had a Pakka house comprising two rooms and further he has stated that no dowry was ever demanded by her in-laws. Further this witness has stated that whenever his son-in-law used to return from his place of posting, his daughter used to accompany him and both of them were living happily and were not suffering any kind of difficulty. Most of the time his daughter used to stay in her Sasural (matrimonial home) and had gone to state to the extent that when she had gone to her matrimonial home, after marriage, she continued to stay there only. After her marriage, she had come to his house 2-3 times in Saket Nagar and whenever she came, on the same day she used to return also. Because of his daughter being eldest daughter-in-law in her matrimonial home, she had to look after the responsibility of the house and, therefore, she used to return the same day. His daughter used to be taken back to her matrimonial home by her devars. Although, he has shown ignorance whether there were sweet relations between his daughter and the respondent no. 2 and other respondents also or not.
By this statements, conclusion was drawn by the learned trial court that there was no demand of dowry made from the side of the accused-respondents and the deceased was living in happy condition in her matrimonial home, which does not appear to suffer from any infirmity.
Further the learned trial court has written in the impugned judgment that PW-2- Hori Lal, who is uncle of the deceased, had though stated in examination-in-chief that the accused were making demand of Rs. 50,000/- for construction of their house but in cross-examination he stated that whenever his niece used to come to her parents house, she used to be accompanied by her husband and whenever her husband was not available she used to be accompanied by her devars and that because of being the eldest daughter-in-law in the said house, she had responsibility and she used to come in the morning and would return in the evening and sometimes when she came in the evening then by the next day, in the morning she used to return. Further this witness has stated that the said amount of Rs. 50,000/- was demanded through his daughter but no demand was ever made from him from the side of the accused- respondents, rather the deceased used to tell about the said demand being made.
From the statement of this witness, the learned trial court has drawn the conclusion that this witness has admitted that his niece was living happily with her husband and not only there were good relations with her husband but her husband's younger brother also was having good relations with her because she often used to visit her parents house in their company. All this, he held, pointed towards the fact that there was no cruelty for demand of dowry being made and that she was living in happy condition and the said conclusion does not appear to be contrary to the evidence on record.
Learned trial court has also written in the judgment that Smt. Geeta PW-4, who is mother of the deceased, had also stated that there was demand of Rs. 50,000/- being made from the matrimonial home of the deceased and that her daughter was murdered in her very first bidai and in cross-examination this witness has stated that the deceased was killed, as the demand for money was not met which was being made for construction of his house.
Learned trial court after having discussed the above evidence adduced from the side of prosecution, further mentioned in the judgment that it was evident from the said evidence that all the three witnesses of fact had clearly stated that a demand of Rs. 50,000/- was being made for the purpose of construction of his house regarding which whenever the deceased used to come, she used to tell to the complainant side but no such demand was directly made from the witnesses, while at the same time it is also evident from their testimonies that the deceased often used to visit her parents' house in happy condition and used to return happily, hence the statements of witnesses that she used to be treated cruelly for bringing dowry appears to be doubtful. Further, it is mentioned by the trial court that the demand of money for the construction of house would not be covered in the definition of demand of dowry as defined under Section 2 of Dowry Prohibition Act. Further, the learned trial court has written in the impugned judgment that it becomes clear on the basis of evidence adduced from the side of prosecution/complaint that in the said marriage complainant side had spent around Rs. 4,00,000/- but at the time of marriage no additional demand of dowry was made and if any demand of dowry was made in connection with the marriage to be performed then the same could have qualified to be called as demand for dowry and merely because an amount of Rs. 50,000/- was being asked for construction of his house, would not be considered to be a demand of dowry. It is also held by the trial court that even for the said demand of Rs. 50,000/- there are contradictory statements on record and, accordingly, trial court did not find the said allegation that any demand of additional dowry was made from the side of accused- respondents, proved, hence we find the said conclusion to be in consonance with the evidence on record. It is further recorded in the impugned judgment that it was admitted fact that the husband of the deceased was working in defense forces and the suggestion given from the side of defense that the deceased had committed suicide because respondent no. 1 had refused to take her along to his place of posting, the said suggestion was responded by saying by these witnesses that they have no knowledge about that and that there was no clear denial of the said suggestion.
PW-1 in cross-examination has stated that he does not know as to why his daughter had hanged herself. PW-3 Teerath Singh, who belonged to the village of deceased and was also a witness of panchayatnama had also admitted in cross-examination that there was no torture given to the deceased and that the deceased had committed suicide because her husband was not getting official quarter at his place of posting where he could keep her. After having mentioned all this, the learned trial court held that the possibility could not be ruled out that the deceased had hanged herself because of aforesaid reasons.
In post-mortem report, it is found to be a case of hanging and hyoid bone was not found fractured, which also indicates that she was not murdered by anyone, rather she appears to have committed suicide, therefore, trial court has rightly concluded that this is not a fit case in which accused-respondents could have been held guilty of the charges mentioned above and has rightly passed the judgment of acquittal against them. The judgment of the trial court deserves to be upheld. It may also be mentioned that if another conclusion is possible to be drawn on the basis of same evidence than the conclusion which has been drawn by the learned trial court, the said alternative conclusion should not be drawn by this court at appellate stage and for this we would like to rely upon Arulvelu and another vs. State, (2009) 10 SCC 206, in which it is clearly held that appellate court should be very slow in setting aside a judgment of acquittal where two views are possible. The trial court's judgment cannot be set aside because appellate court's view is more probable. It should not set aside trial court's judgment unless it is either perverse or wholly unsustainable in law. We do not find any perversity in the impugned judgment.
Accordingly, leave to appeal is dismissed.
Since leave to appeal is dismissed, the criminal Appeal is also dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 29.1.2019 A.P. Pandey